Supreme Court To Review Voting Rights Act

Friday, November 9, 2012

Nina Totenberg / NPR

The U.S. Supreme Court said Friday it would consider eliminating a key provision of the Voting Rights Act, the federal law that for decades has been the government's main tool for fighting discrimination at the polls.

The law, first enacted in 1965 and reauthorized three times by Congress since then, is generally considered the most effective civil rights legislation in American history. Its provisions were extended by a Republican Congress in 2006 and signed into law again by President George W. Bush.

The key provision of the law, and the one the court said it would review, requires jurisdictions with a history of discrimination in voting to get approval from the Justice Department, or a federal court in Washington, before changing any election procedures. For example, if an Alabama town wants to move polling places to new locations, it first has to get permission. The purpose of this "preclearance" provision is to prevent discrimination from happening, rather than forcing voters to go to court and prove discrimination after the fact.

The preclearance provision covers nine states, mainly in the Deep South, plus parts of other states including New York and California. But it is the Southern states in particular that contend that there is no need anymore for them to be treated differently from most of the country. And the case that the court will hear later in the term was brought by Shelby County, Ala.

The county argues the formula used to determine which states and areas are covered by the law is out of date. The law requires pre-clearance for those areas with a history of using a "test" or "device" to prevent minorities from voting, or areas where fewer than 50 percent of minorities were registered to vote in 1972.

In a nearly unanimous vote in 2006, Congress found there was still adequate evidence of discrimination in these areas to justify keeping the formula in place. The court, by an 8-to-1 vote, upheld the law three years later. Chief Justice John Roberts, whose antipathy for the statute goes back to the 1980s when he was in the Reagan administration, wrote the opinion. But he went out of his way to suggest that the law might have outlived its usefulness and urged Congress to revisit it

Congress, however, did not heed that warning. That, plus the tone of the court's most recent ruling, spawned new legal challenges. And on Friday, the court decided to revisit the issue. It takes the votes of only four justices to hear a case, but the fact that there are at least four so soon after the court's last ruling suggests that at least the conservatives on the court are prepared to act now, with Justice Anthony Kennedy likely -- but not certain -- to be the fifth vote to strike down the pre-clearance provision.

At arguments later in the term, the Justice Department and civil rights groups will undoubtedly focus in part on the most recent election, pointing to the many places where the Voting Rights Act was used to stop alleged voter suppression. The Southern states that are challenging the law will argue that their sovereign rights as states are being burdened even though some of them have a better record on minority turnout than some states not covered by the law.